(Jones v. Hollopeter.)

relevant, in this action. I have gone through all the errors, assigned in the case, and 'am of opinion that none of them have been supported and therefore the judgment should be affirmed.

Judgment affirmed.

[CHAMBERSBURG, OCTOBER 17, 1823.]

HAYDEN and Wife against MENTZER, and others.

IN ERROR.

In a deed of bargain and sale which states a money consideration, evidence is admissible to show that besides the consideration of money, there was a consider. ation of advancement to the daughter of the bargainor.

Query, Whether parol evidence is admissible, to show a consideration contrary to that expressed in a deed of bargain and sale..

THIS was a writ of error to the Court of Common Pleas of Franklin, county, in an amicable action entered in the name of Richard Hayden and Rachael his wife against C. Mentzer and others in pursuance of the recommendation of the Orphans' Court, for the purpose of ascertaining the amount of advancement made by David Mentzer, deceased, in his life time, to Rachael Hayden, late Rachael Topper, one of his daughters, and a plaintiff in this action.

It appeared on the trial, that articles of agreement were executed on the 10th May, 1807, between David Mentzer and Andrew Topper, (former husband of Rachael Hayden,) by which the former, for the consideration after mentioned, agreed with the said, A. Topper, his heirs, &c. on or before the 1st November, then next, to give a sufficient title for a certain tract of land containing 110 acres and 115 perches together with 4 acres of meadow, and 20 acres of mountain land, adjoining, &c. and a note of hand, and some pine timber, in consideration whereof the said A. Topper, agreed to pay £200 in two payments, the first, in one year after D. Mentzer's death, the other in two years after that time, and by the agreement D. Mentzer reserved certain crops of grain in the ground. On the 7th November, 1807, D. Mentzer and wife conveyed the lands to A. Topper, in fee, in consideration of the same sums. The defendants gave parol evidence to show, that the tract of 110 acres and 115 perches cost Mentzer £800, and was worth that sum, and that the intent of the parties was, that £800, should be considered as advanced by him to Topper, on account of his wife, and that the £200, mentioned in the articles as the consideration money, was to be paid for the 4 acres of meadow and the mountain land.

The plaintiffs requested the court to charge the jury as follows: 2 T

VOL. X.

(Hayden and wife v. Mentzer, and others.)

1st. That the articles of agreement are conclusive evidence of a bargain and sale of the land to Andrew Topper, and cannot be altered by any of the parol evidence which has been given.

2d. The land having been sold to A. Topper himself, in fee simple and for a valuable consideration, cannot be an advancement to the wife of a A. Topper.

3d. That none of the declarations of A. Topper, can alter the nature of the transaction or convert it into an advancement.

4th. There is no evidence of any advancement to the wife of the defendant.

5th. There being evidence of fraud or mistake in procuring the articles of agreement or deed, the plaintiffs cannot, in this manner be permitted to set up any other consideration than that expressed in said instruments, and the jury is not to regard parol evidence given to establish another consideration.

The court charged as follows:

1st point. We are of opinion the articles of agreement are not conclusive evidence of bargain and sale of the land to A. Topper, so as to prevent an inquiry on the present issue whether an advancement was intended by the parties.

2d point. If the land was sold to A. Topper himself in fee simple, for a valuable consideration, it could not be considered as an advancement to the wife of A. Topper. But if you are satisfied from the evidence before you, that the agreement of the parties was, that £800, or any greater or less sum, was intended by Mentzer as an advancement to his daughter, and so considered and received by Topper her husband, and that the £200 mentioned in the deed was only part of the consideration for the land so conveyed, then such sum, so agreed upon, would constitute a good advancement, and you should find accordingly.

3d point. The declarations of A. Topper, cannot alter the nature of the transaction, and convert it into an advancement. But they are evidence of what the transaction was, and tended to show, whether an advancement or sale was intended.

4th. We think there is some evidence of such advancement, but refer its extent and credibility to the jury to decide.

5th. To this proposition we do not assent, under the facts in evidence if believed by the jury. Whether they establish fraud or mistake in the agreement or deed, the plaintiffs are permitted to set up a further consideration than that expressed, being consistent with it. And the parol evidence given to establish such further or additional consideration is properly before you for your consideration.

It was assigned for error, that the court erred in their charge to the jury on all these points.

Dunlop and M'Culloh, for the plaintiff in error.

Under the articles and deed, this was a sale, and not an advancement, and parol evidence was not admissible to contradict the con

(Hayden and wife v. Mentzer, and others.)

sideration expressed in them. The act of 19th April, 1794, provides for the case of settlement of an estate or advancement by the intestate in his life time, in analogy to the English statute of distributions. If the child pays money for an estate, this is no settlement upon, but a sale to, the child: and it is not within the words or intent of the act, that such purchase should be brought into hotch-pot. Steward v. Roe, 2 P. Wms. 435. So in Edwards v. Freeman, 1 Eq. Ab. 252, it is said, that when a child, either with his own, or a relative's money, purchases an estate, or a sum of money from the father, this is certainly no provision by the father, but a direct sale, as much as it would have been to any stranger. Was the parol evidence then admissible to contradict the deed, and show a different consideration from that expressed. In Villers v. Beamont, 2 Dy. 146, b., the law is laid down to be, that when a sole, or single cause, or consideration, or intent, is expressed in a deed or writing of gift, grant, or feoffment, no other cause or consideration, or intent, shall be joined, mixed, or averred by matter of fact dehors, and many authorities are cited. In Clarkson v. Hanway, 2 P. Wms. 204, the master of the rolls says, it would be of mischievous consequence, and liable to the danger of perjury, which the statute of frauds intended to prevent, to suffer parol evidence to prove blood and kindred to have been the consideration of a conveyance, which stated a money consideration. The same doctrine is recognized in Wilt v. Franklin, 1 Binn. 518, in the opinion of the Chief Justice, namely, that if a consideration is expressed in a deed of bargain and sale, there shall be no averment or evidence received to the contrary. In Maigley v. Hauer, 7 Johns. Rep. 341, the court say, it is a settled rule, that where the consideration is expressly stated in a deed, and it is not said also, and for other considerations, you cannot enter into the proof of any other, for that would be contrary to the deed. Howes v. Barker, 3 Johns. 506. Skermerhorn v. Vanderhayden, 1 Johns. 140. Overseers of Berlin v. Overseers of Norwich, 10 Johns. 228, are to the same purport. Phillips lays down the general rule to be, that a party to a deed will be precluded from showing a condition or consideration contrary to what is expressed in the deed. 1 Phill. Ev. 426.. Church's Lessee v. Church, 4 Yeates, 280, is an authority, that the declarations of a grantee after receiving a deed, that she had not paid the consideration money, but held the land in trust for the family, were not admisible in evidence against her devisee. Parol evidence is receivable to vary written instruments, only in cases of fraud, mistake, or trust, or of matters that passed at the time of execution. Cozens v. Stevenson, 5 Serg. & Rawle, 421. And of late, the disposition of our courts has been to restrict this kind of evidence as much as can be consistently with former decisions. "Every one," says the Chief Justice in Cozens v. Stevenson, "who has been much engaged in business, must be sensible of the danger of destroying

(Hayden and wife v. Mentzer and others.)

In Dennis V.

written instruments by the frail memory of man." Barber, 6 Serg. & Rawle, 426, DUNCAN, J. says, "every day's experience must bring home to the conviction of all men, the insecurity of reliance on mere recollection: and I care not, therefore, how strictly the construction of written evidence may be protected from the insidious influence of parol proof. In this we have already relaxed too far." In Share v. Anderson's Executors, 7 Serg. & Rawle, 69, GIBSON, J. says, "there is no wiser rule and certainly none better established, than that a contract shall not rest partly in writing and partly in parol:" and, "that in giving effect to parol evidence of the intention of the parties to a written contract, I will never consent to a jot beyond the adjudged cases, and in truth, I would much rather recede than advance."

Hughes and Chambers, contra. It is plain that an advancement to the amount of £800 was intended. The gift of it to the son makes no difference, for it is laid down, Swinb. 233, Part III. No. 22, that if the father bestow a competent portion with his daughter in marriage, upon him that shall marry her, this, without question, is such an advancement as will bar her from the demand of a filial portion. Then is parol evidence admissible, not to contradict the consideration of money stated in this deed, but to show an additional consideration, namely, advancement. To this point there are numerous authorities. Phillips lays it down as an established rule, that a party may aver another consideration which is consistent with that expressed. 1 Phill. Ev. 424. And the cases there referred to establish, that it is not considered to be inconsistent with a deed to prove another consideration in addition to the consideration expressed. Ib. 425, note. Mildmay's Case, 1 Co. 176. Vernon's Case, 4 Co. So parol evidence is admissible to explain deeds in other respects. The date of a deed, and whether a consideration was paid, and what was the amount of a deed, may all be shown in this way. Shepherd v. Little, 14 Johns. 212. A receipt in the body of a deed is not conclusive of the fact: it is only prima facie evidence, and it may be contradicted by evidence that the money was not paid. Jordan v. Cooper, 3 Serg. & Rawle, Weigly's Admrs. v. Weir, 7 Serg. & Rawle, 311. Hamilton v. McGuire's Executors, 3 Serg. & Rawle. 355.

564.

The opinion of the court was delivered by

TILGHMAN, C. J. This was an amicable action, instituted for the purpose of ascertaining whether Rachael, the wife of Richard Hayden, had received any thing and how much, as an advancement, from her father David Mentzer, deceased, during his life. It was proved, that David Mentzer had entered into written articles of agreement, with his son-in-law Andrew Topper, deceased, the former husband of his daughter Rachael (now the wife of Richard Hayden, and one of the plaintiffs,) by which he covenanted to convey to the said Topper in fee, a tract of land, con

(Hayden and wife v. Mentzer and others.)

taining 110 acres, a small piece of meadow adjoining it, containing 4 acres, and a tract of mountain land, containing 20 acres, in consideration whereof, Topper was to pay £200, one half in one year, and the other half in two years, from the death of Mentzer. It was contended on behalf of the defendants, and so proved by satisfactory parol evidence, that the tract of 110 acres cost Mentzer £800, and was worth that sum, and that the intent of the parties was, that £800 should be considered as advanced by Mentzer to Topper on account of his wife, and £200, (the consideration expressed in the articles of agreement, was to be paid for the 4 acres of meadow and the mountain land. The only question was, whether the articles of agreement, and the deeds which were afterwards executed, in pursuance of them, were not conclusive evidence, that the sole consideration was the sum of £200, to be paid by Topper.

It has not been denied, that a father may make an advancement to his daughter, within the meaning of the act of assembly, by conveyance of land to her husband in fee, just as he may make an advancement by paying a sum of money to the husband. It is the property of the father, who may advance his daughter in what manner he pleases, and he may think it most for her interest to place the property under the absolute controul of the husband. But the plaintiffs rely on the rule of law, by which parol evidence is excluded in the case of written instruments. It is unnecessary on the present occasion to travel through what may be truly called the wilderness of cases on the subject of parol evidence. We may decide the present question on plain principles. It is clear, beyond doubt, that any consideration, not contradictory of that which is mentioned in the deed, may be averred, and proved by parol evidence. Where a conveyance is made by deed of bargain and sale, for a consideration of money, it may be averred, that there was also a consideration of natural love and affection, in consequence of which, the deed may operate by way of covenant to stand seised. In the case before us, where the deed is, in form, a bargain and sale, in consideration of money, the land passes by bargain and sale, and ̧ parol evidence would be inadmissible for the purpose of showing, that there was no consideration of money. That would be in direct contradiction of the deed, and would defeat its operation. But it is by no means contradictory, nor does it at all affect the operation of the deed, to aver, that besides the consideration of money, there was a consideration of advancement to the daughter of the bargainor, and that the true intent of the parties was, to convey to the husband, several tracts of land, valued altogether at £1000, for which he was to pay but £200, after the death of the father, and the remaining £800 was to be considered as an advancement to the daughter. The whole transaction bears on its face intrinsic marks of advancement, and I am clearly of opinion, that the parol evidence was consistent with the deed, and properly admitted. I am not to be understood, as saying, that in no case can a consideration